Holden v. Holden

COURT OF APPEALS OF VIRGINIA

Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia

ROBERT CHARLES HOLDEN
OPINION BY
v. Record No. 1815-00-3 JUDGE G. STEVEN AGEE
APRIL 24, 2001
JENA TAETZ HOLDEN

FROM THE CIRCUIT COURT OF ROANOKE COUNTY
Diane McQ. Strickland, Judge

Charles B. Phillips (Phillips, Swanson &
Phillips, on brief), for appellant.

Frank K. Friedman (John P. Grove; Woods,
Rogers & Hazlegrove, P.L.C., on brief), for
appellee.

Robert Charles Holden (husband) appeals a final order of

the Roanoke County Circuit Court regarding the equitable

distribution of property and the award of spousal support. This

order came partly as a result of our remand in Holden v. Holden,

31 Va. App. 24, 520 S.E.2d 842 (1999) (Holden I). For the

reasons set forth below, the order now on appeal is affirmed in

part, reversed in part and the case is remanded for further

proceedings consistent with this opinion.

I. Background

Husband and Jena T. Holden (wife) have been involved in an

acrimonious divorce proceeding for several years. By a final

order dated October 28, 1998 (the 1998 order), the Roanoke
County Circuit Court awarded both parties a divorce a vinculo

matrimonii, made an equitable distribution award of marital

property and awarded spousal support to wife.

The 1998 order divided the marital property into two equal

portions, based on valuations at that time, and assigned the

various items comprising the marital property to husband or

wife. For purposes of the current appeal, two of the assigned

items of marital property are of particular note. The trial

court assigned a parcel of land in Bedford County to husband

valued at $30,000, and classified it as all marital property.

The court also allocated certain corporate stock as follows:

The Court does further ORDER and direct that
the total number of shares of Rowe Furniture
Stock be divided equally.

The trial court also provided in the 1998 order that

husband pay wife monthly spousal support of $185.

The 1998 order, like the order now on appeal, is partly a

narrative ledger of the assigned marital properties to husband

and wife, yielding equal amounts at the end.

In Holden I, husband contended that $17,000 of the value of

the Bedford County property represented husband's separate

property and, therefore, was not subject to the equitable

distribution division as marital property. Husband also

appealed the award of spousal support, but later withdrew that

assignment of error.

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 Husband prevailed in Holden I. We agreed with his claim

that $17,000 of the $30,000 value of the Bedford County property

represented his separate property. Our opinion in Holden I

concluded with the following statement: "[W]e reverse the

equitable distribution award and remand for an order consistent

with this opinion." Id. at 29-30, 520 S.E.2d at 845.

While Holden I was pending before us, husband sought a

hearing in the circuit court for reduction of the previously

awarded spousal support. On May 17, 1999, the trial court

entered an order reducing the monthly spousal support from $185

to $100. Husband apparently withdrew his assignment of error

relating to spousal support before oral argument on his appeal

and prior to the May 17, 1999 revised spousal support order. He

did not, however, obtain leave of this Court to proceed in the

circuit court on his motion to reduce spousal support.

After our decision in Holden I, both parties filed notices

to be heard on several topics in the trial court. Husband

sought a hearing on the following: (1) "Termination of spousal

support"; (2) "[t]o clarify division of the personal property";

(3) "[t]o divide [sic] the provisions for division of the Rowe

Furniture Stock"; and (4) "[t]o set the monetary award pursuant

to the Court of Appeals direction." Wife asked the court to

order: "That [husband] be held in contempt of court for his

failure to pay spousal support in accordance with the Court's

Order dated May 17, 1999"; and "[t]hat [husband] be ordered to

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take the necessary steps to divide the total number of shares of

Rowe Furniture Stock in accordance with the Court's Order dated

October 20, 1998."

At the April 12, 2000 hearing on these motions, the

evidence was uncontradicted that the value of the Rowe Furniture

Stock (Rowe stock) had declined in value by at least $9,000

since the 1998 order. The stock certificates, issued in

husband's name, apparently could not be found and a fee was

required to replace the certificates. Each party blamed the

other for loss of the stock certificates and argued the other

should pay the lost certificate fee. Husband also testified to

adverse income tax consequences if sale of the Rowe stock was

required as opposed to a distribution in kind.

The trial judge, sua sponte, announced at the hearing that

the May 17, 1999 order reducing spousal support had been in

error. Because the case was on appeal to this Court at that

time, the trial judge ruled she lacked jurisdiction to reduce

the support award. Accordingly, the court retroactively

reinstated the $185 monthly support amount.

The trial court entered the order now on appeal, dated June

26, 2000 (the 2000 order), covering the issues presented at the

April hearing. This order was a final order as contemplated by

Code § 17.1-405(3).

The court resolved the remand issue of the separate

property portion of the Bedford County land by ordering wife to

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pay husband $8,530. 1 Contrary to the 1998 order, the court then

awarded all the Rowe stock to husband, yet assigned the value of

$34,214 to that stock which was the value used in the 1998

order, not the current market value. The court also ordered

monetary adjustments for the disposition of certain tangible

personal property and reimposed the $185 per month spousal

support award retroactive to May, 1999.

Husband timely objected to the 2000 order and filed this

appeal.

II. Analysis

Husband contends (1) the court failed to follow our mandate

in Holden I because husband should have received an award of

$17,000, not $8,530, for his separate property interest in the

Bedford County property; (2) the court erred in assigning all

the Rowe stock to him because the stock allocation was not an

issue covered by our remand order; and (3) the court erred in

reversing its prior reduction in spousal support because it

erroneously concluded the pending appeal in Holden I deprived

the trial court of jurisdiction.

1
While $8,500 was one-half the $17,000 separate property
amount, an additional $30 was added to correct a previous and
unrelated clerical error, resulting in a total payment of
$8,530; $8,530 is used herein in referring to the separate
property adjustment instead of $8,500.

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 A. The $17,000 separate property determination

Husband argues on appeal that the redistribution of the

marital property in the 2000 order fails to follow the remand

directions in Holden I. We disagree. A mathematical

calculation shows the trial court's resolution is correct.

In the 1998 order, husband was deemed to have an

entitlement to $15,000 of the $30,000 value as "his" half of the

Bedford County land when that property was classified as all

marital property. In the recapitulation of all values for the

assigned marital assets in the 1998 order, husband received the

fee simple interest in the Bedford County land, so he

"compensated" wife for her $15,000 interest in the land through

other adjustments. Husband also received the Bedford County

property under the 2000 order, but, based on Holden I, $17,000

of its value is his separate property, leaving $13,000 of

marital equity to divide ($6,500 per spouse). Husband,

therefore, is entitled to $23,500 of the value of the Bedford

County land ($17,000 as his separate property interest and

$6,500 for his half of the marital portion). By awarding the

husband $8,530 in the 2000 order, he received a $23,530 credit

($15,000 plus $8,530) for "his" separate and marital property

interests in the Bedford County land.

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 Husband urges us to adopt his exhibit from the record as

"the correct redistribution formula," 2 which, he argues, entitled

him to $17,060. This exhibit confirms the correctness of the

trial court's ruling.

The exhibit reflects an assignment to husband of the equity

in the Bedford County property. By assigning the equity in the

property to husband, assuming equal distribution in kind of the

Rowe stock, wife would receive $17,060 more of the total marital

assets, $89,379 versus $72,319. Because husband received the

complete fee simple interest in the Bedford County property, he

already had received the $17,000 value of his separate property

portion, as adjudicated by Holden I. If wife paid husband

$8,530 as ordered by the trial court, each party would then

2
Husband's exhibit provides, in pertinent part, the
following calculation:

Asset Wife Husband Total Value
Marital residence $55,000 $ 55,000
1993 Plymouth $ 7,750 $ 7,750
1987 Boat $ 625 $ 625
Diamond Ring $ 1,589 $ 1,589
Life Insurance $ 4,058 $ 4,600 $ 8,658
Checking Account $ 498 $ 498
Savings Account $ 200 $ 200
Joint Account $ 267 $ 267
Credit Union Account $ 264 $ 264
Credit Union Account $ 427 $ 427
Rowe Furniture Stock $ 0 $ 0 $ 0
Comic Books $ 1,000 $ 1,000
Bedford land $13,000 $ 13,000
401K $20,017 $52,403 $ 72,420
Totals $89,379 $72,319 $161,698

Owed to Husband as a result of successful appeal $17,060 . . . .

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receive $80,849 of marital property and, therefore, equal

shares. By contrast, husband's argument for a $17,060 payment

from wife would give him a windfall of $8,530.

We hold that the trial court properly followed the Holden I

mandate by ordering wife to pay husband $8,530 in satisfaction

of his separate property interest in the Bedford County

property.

B. Rowe Furniture Stock

Husband argues on appeal that the trial court erred in

allocating to him all the Rowe stock, as opposed to equal

distribution in kind as originally ordered. He contends the

trial court lacked authority to change the stock distribution

because that issue was not covered under our Holden I remand

mandate. Although husband's argument is incorrect, we do find,

nonetheless, that the trial court erred when reversing the

distribution of the Rowe stock because the ruling is contrary to

our holding in Wagner v. Wagner, 16 Va. App. 529, 431 S.E.2d 77

(1993) (en banc). See also Rowe v. Rowe, 33 Va. App. 250, 532

S.E.2d 908 (2000). 3

Husband cites Virginia Electric and Power Company v.

Westmoreland-LG&E Partners, 259 Va. 319, 526 S.E.2d 750 (2000),

and Antonelli v. Antonelli, 242 Va. 152, 409 S.E.2d 117 (1991),

for the proposition that the trial court lacked authority to

3
There is apparently no relationship between the parties in
Rowe and the Rowe Furniture Corporation.

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address division of the Rowe stock. Husband's reading of

Antonelli is strained, at best, and Virginia Power contradicts

his argument.

The final sentence in Holden I states: "Accordingly, we

reverse the equitable distribution award and remand for an order

consistent with this opinion." 31 Va. App. at 29-30, 520 S.E.2d

at 845. We included no words of limitation to prevent the trial

court from adjusting the equitable distribution award so as to

comply with the remand mandate. The Supreme Court of Virginia

clearly enunciated this principle in Virginia Power:

As explained in Nassif v. Board of
Supervisors of Fairfax County, 231 Va. 472,
481, 345 S.E.2d 520, 525 (1986), "[w]hen we
limit issues on remand we do so with words
of limitation or restriction."

259 Va. at 323, 526 S.E.2d at 753.

Because we did not use words of limitation or restriction

in the Holden I remand, the trial court was permitted to revise

the equitable distribution award to the extent necessary to

facilitate the restoration to husband of his separate property

portion of the Bedford County property and to address the other

issues left unfulfilled from the 1998 order which the parties

asked the Court to settle. Common sense dictates some

adjustment to the 1998 distribution scheme was required so the

adjustment due husband could be made.

The husband in fact invited the court to address the issue

of the Rowe stock in his notice of hearing for the April 12,

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2000 proceeding: "to divide [sic] the provisions for division

of the Rowe Furniture Stock." As we noted in Steinberg v.

Steinberg, 21 Va. App. 42, 461 S.E.2d 421 (1995): "He cannot

approbate and reprobate - invite error and then take advantage

of his own wrong." Id. at 50, 461 S.E.2d at 424.

We hold the trial court did err, though, by assigning all

the Rowe stock to husband in contravention of its 1998 order.

The evidence before the court was that the stock value had

declined significantly following the 1998 order. Yet the trial

court arbitrarily and without basis assigned all the Rowe stock

and all the loss of its value to husband. This action is

directly contrary to our holding in Wagner, where we said

re-valuation on remand is necessary "to obtain the most accurate

valuation and equitable distribution." 16 Va. App. at 531, 431

S.E.2d at 78. Our holding in this matter is further supported

by Rowe, where we held:

"We have stressed that the trial judge in
evaluating marital property should select a
valuation 'that will provide the Court with
the most current and accurate information
available which avoids inequitable
results.'"

* * * * * * *

Where an asset that is subject to equitable
distribution is retained by one of the
parties for a period of time after valuation
but before the equitable division occurs and
the asset significantly increases or
decreases in value during that time through
neither the efforts or fault of either
party, neither party should

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 disproportionately suffer the loss or
benefit from the windfall.

33 Va. App. at 263-64, 532 S.E.2d at 915 (citations omitted).

Nothing in the record shows the parties were bound by the

valuation used in the 1998 order. The trial court made no

finding or reference that husband or wife was at fault for

failure to cause the equal distribution in kind of the Rowe

stock. The 1998 order contains no directive as to who was

required to facilitate the division and distribution of the

stock. While each party blames the other for failing to cause

the stock to be distributed, wife's claim of dire economic

stress is dubious in view of the fact it took her over a year to

raise the issue. 4

We hold that the trial judge abused her discretion by

failing to revalue the stock, particularly where uncontradicted

evidence proved it had declined in value.

We explicitly hold that on remand the trial judge may

revise the equitable distribution award to the extent necessary

to facilitate an equal distribution of the marital property. An

equal division in kind of the Rowe stock may avoid the necessity

for revaluing the stock. If the court orders an equal division

of the stock, the remaining assets, particularly those with a

ready cash equivalency, such as bank accounts, could be adjusted

4
This is precisely the type issue the trial court could
address under Decker, as discussed in subsection C, infra.

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in the final equitable distribution award to equalize the

division of marital property and the other awards. Should a

cost be incurred to distribute the stock, the trial court could

assign those costs as the circumstances indicate if the parties

fail to agree on a cost allocation. The court may also direct a

particular person or method to facilitate the distribution and

attach consequences for failure to timely do so.

C. Trial Court Jurisdiction Pending Appeal

Husband also claims the trial court erred by revoking its

order reducing spousal support entered while Holden I was on

appeal to this Court. He argues, citing Decker v. Decker, 17

Va. App. 562, 440 S.E.2d 411 (1994), that because the spousal

support issue was withdrawn before Holden I was decided, the

trial court had jurisdiction to revisit spousal support as that

subject matter was no longer a matter of controversy on appeal.

We disagree.

The order on appeal in Holden I was a final order, not

interlocutory, adjudicating all the matters in controversy

between the parties. 5 Otherwise, we would have lacked appellate

jurisdiction under Code § 17.1-405.

The appeal of a final order divests the trial court of

authority to modify, amend or change that order until the

5
The matter was retained on the circuit court docket for
ninety days solely to monitor the division of tangible personal
property.

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appellate court has acted. This principle was clearly

annunciated by the Supreme Court in Greene v. Greene, 223 Va.

210, 288 S.E.2d 447 (1982).

The orderly administration of justice
demands that when an appellate court
acquires jurisdiction over the parties
involved in litigation and the subject
matter of their controversy, the
jurisdiction of the trial court from which
the appeal was taken must cease. We
acquired jurisdiction over this matter when
Ms. Greene's petition for appeal was filed
and docketed in the Clerk's Office of this
Court, and thereafter corrections and
alterations could be made only with leave of
this Court.

Id. at 212, 288 S.E.2d at 448 (citation omitted).

Husband withdrew his assignment of error in Holden I

relating to spousal support, which he was entitled to do under

Rule 5A:36. However, husband did not request leave from us to

seek any change or modification to the final order still on

appeal. Husband's failure to seek and obtain leave from us is

fatal to his argument.

Husband cites Decker for the proposition that he can

continue to litigate issues in the trial court, notwithstanding

the trial court's final order, so long as those issues are not

specifically before the appellate court. We disagree. Decker

held as follows:

This Court acquired jurisdiction when Ms.
Decker's appeal was filed and docketed in
the clerk's office of the Court of Appeals.
Thus, while the trial court may enforce a
support and custody order, it may not modify

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 such order without leave of court. Only
under compelling circumstances would this
Court likely grant such leave . . . .
Because no leave of court was sought, the
trial court did not err in refusing to
modify the award.

17 Va. App. at 564, 440 S.E.2d at 412.

When a final order of the trial court is on appeal, the

appellate court acquires jurisdiction over that case to the

exclusion of the trial court, except to the extent the trial

court must act to enforce the order pending appeal. To adopt

husband's position would thwart the orderly administration of

justice by opening the door to perpetual relitigation, thereby

preventing an appellate court from dealing with finality on the

issues before it.

The trial judge correctly determined she lacked

jurisdiction to reduce the spousal support award of the 1998

order while that order was on appeal. The trial court,

therefore, acted properly in the 2000 order to reverse its prior

reduction of spousal support made while the 1998 order was on

appeal.

The trial court's order of June 26, 2000 is (1) affirmed as

to the disposition of the Bedford County separate property by

having wife pay husband $8,530; (2) affirmed as to the reversal

of the prior reduction in spousal support, and (3) reversed as

to the allocation of the Rowe Furniture stock and remanded for

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further proceedings regarding that matter which are consistent

with this opinion.

Affirmed in part, reversed
in part and remanded.

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